Nemesis: The Last Days of the American Republic

heart.”³

A subtler form of pollution—also much resented by those who live near U.S. bases—is noise. The sounds of warplanes and helicopters become a perpetual backdrop to daily life. The citizens of the large urban prefecture of Kanagawa have protested for years that U.S. Navy planes from Atsugi air base practicing night landings keep them awake. Cities located near large American airfields have even successfully sued for damages. In February 2005, a district court awarded the communities around Okinawa’s Kadena Air Base 2.8 billion yen ($24,472,000) in compensation for noise pollution. However, even though the citizens who brought this suit won in court, they are unlikely ever to receive any compensation from the U.S. government. Article 18 (5) (3) of Japan’s SOFA stipulates, “Where the United States alone is responsible [in a civil claims case], the amount awarded or adjudged shall be distributed in the proportion of 25 percent chargeable to Japan and 75 percent chargeable to the United States.” The Japanese Ministry of Foreign Affairs has been trying unsuccessfully since 1994 to get the United States to pay its share of earlier noise judgments. U.S. administrations have regularly professed to find it “strange” that the American military should have to pay damages for practicing warfare to protect Japan. The U.S. government demands that Japan abide by what it has signed but is indifferent about its own obligations under the SOFA.⁴

The NATO SOFA and the agreements with individual European countries do not contain exemptions from responsibility for environmental and noise pollution, which is undoubtedly one reason Secretary of Defense Rumsfeld wants to move American bases from Germany to the’ new Europe,” those ex-communist satellites of Eastern Europe that are poor and desperate enough to be willing—at least for now—to let the Americans pollute as they wish, cost free, in order to get what economic benefits they can.

SOFAs actually take the question of American entrances and exits out of the hands of host countries—which, of course, gives the very term “host” a curious, new meaning. Article 9(2) of Japans SOFA is typical. “Members of the United States armed forces,” it says, “shall be exempt from Japanese passport and visa laws and regulations.” This means that American servicemen accused of crimes in Japan have sometimes been spirited out of the country without facing legal obstacles, and the Japanese can do nothing about it.

Or take, for example, the simple matter of driving skills in countries like Japan where the direction of road traffic is the reverse of that in the United States. Article 10(1) of the Japanese SOFA states: “Japan shall accept as valid, without a driving test or fee, the driving permit or license or military driving permit issued by the United States to a member of the United States armed forces, the civilian component, and their dependents.” Citizens of Okinawa have paid a high price for this clause in head-on crashes and hit-and-run accidents since 1972, when the island was restored to Japanese sovereignty and driving on the left-hand side of the road once again became the law of the land—except for confused GIs. Article 13(1) only aggravates article 10: “The United States armed forces shall not be subject to taxes or similar charges on property held, used or transferred by such forces in Japan.” The governor of Okinawa, Keiichi Inamine, contends that U.S. military personnel now pay less than one-fifth of what Japanese citizens pay for the public services they receive and that if their vehicles were taxed as those of ordinary citizens are, Okinawa’s income would increase by 780 million yen ($6.8 million).⁵

There are a legion of other complex problems associated with SOFAs, including the large tracts of otherwise valuable land in land-poor countries like Japan that the United States “leases” for free; the host-nation employees who work on our military bases without the protection of either their own or U.S. labor laws; and the fact that host-nation customs officers are denied access to U.S. military cargos.

However, easily the most contentious issues between the United States and nations on the receiving end of our empire of bases involve problems of civil and criminal jurisdiction. For civil matters, such as damage caused by off- duty American personnel driving their cars, SOFAs often stipulate how the injury is to be determined and compensated—including the possibility of requiring our forces to carry personal property damage insurance. For criminal cases, all SOFAs differ, but most award primary jurisdiction to the United States if the crime was committed by one soldier against another or if a crime was committed while a service member was engaged in his or her official duties. In other types of crimes, the host nation usually retains jurisdiction.

This seemingly straightforward distinction has unfortunately been anything but. What if a crime, committed by a service member on duty, was unrelated to those duties? Who then gets to decide jurisdiction in such instances? The most famous Japanese-American SOFA case went all the way to the U.S. Supreme Court (Wilson v. Girard, 354 US 524 [1957]). It concerned an incident in which the United States and Japan agreed on the facts, but the Americans claimed that their soldier was performing his duties while the Japanese insisted he was acting well beyond them. In January 1957, a twenty-one-year-old army specialist third class, William S. Girard, was guarding a machine gun on a practice range. A Japanese woman—a mother of six who earned her living by selling scrap metal— intruded onto the range to scavenge for expended shell casings. Girard, using a grenade launcher, fired an empty shell casing at her, killing her.

According to testimony, Girard lured the woman closer by tossing empty shell casings toward her and then shot her as a “joke.”⁶ The United States at first claimed primary jurisdiction under the SOFA in effect at the time, but then agreed to turn over Girard to Japan because of the public furor the incident generated. Girard sued the secretary of defense, Charles E. Wilson, claiming that, according to law, he should be tried by a U.S. court-martial, not by a Japanese court. The U.S. District Court for the District of Columbia agreed with Girard, but the Supreme Court then reversed this decision. A Japanese court gave Girard a three-year suspended sentence and he soon returned to the United States accompanied by his Japanese wife.⁷

It remains a major issue of constitutional law in the United States whether the Pentagon can, by ordering a soldier to serve in a particular foreign country, force him or her to give up the guarantees provided under the Bill of Rights.⁸ Much of the American press at the time of the Girard case was outraged by the Supreme Court’s decision. “The basic rights of the American soldier have been violated,” trumpeted Hearst’s New York Journal-American. But Tokyo’s Asahi Evening News expressed pleasure that Japan was granted this minimal display of sovereignty. “At no time since the signing of the San Francisco peace treaty have Japanese thought so kindly of the U.S. and the American sense of justice and fair- play.”⁹ Unfortunately, since the Girard case, it has been all downhill.

Between 1998 and 2004, U.S. military personnel in Japan have been involved in 2,024 reported crimes or accidents while on duty. Only one led to a court-martial. Commanders ordered “administrative discipline” in 318 instances; the remaining 1,706 presumably went unpunished.¹⁰

SOFAs invariably infringe on the sovereignty of the host nation. In the Girard case, the U.S. Supreme Court paraphrased Chief Justice John Marshall, fourth chief justice of the United States, defining a sovereign nation as one that “has exclusive jurisdiction to punish offenses against its laws committed within its borders unless it expressly or impliedly consents to surrender its jurisdiction.” SOFAs quite explicitly take away sovereign rights, which is why they are more easily imposed on defeated or occupied nations like Germany and Japan after World War II and South Korea after the Korean War, or extremely weak and dependent nations like Ecuador and Honduras. But while they attempt to regularize the largely one-sided relationships of the American military empire and are often willingly enforced by allied, satellite, or dependent governments, they also introduce notions that can grow into long-term discontent and popular opposition to empire itself. SOFAs cannot help but give rise to explosive political disputes when American laws and the expectations of its troops create a climate of impunity in the host nation. Outrage is then often sparked by simple differences in legal cultures. For example, in South Korea, murder is defined simply as causing the death of a Korean citizen, regardless of the presence of intent, negligence, or even motive. American troops are thus fearful of being tried in Korean courts, even though, ironically enough, they have often been dealt with more leniently in Korean courts than they would be in American ones. At the same time, Koreans are